Fitzjarrell v. Boyd

This is an action brought by the appellee against the appellant to recover damages for injuries sustained while riding in the defendant's automobile, as his guest, caused by the alleged negligence of the defendant.

The case was tried in the Superior Court of Baltimore City, before the Court, sitting as a jury, and from a judgment in favor of the plaintiff for $1.750, the defendant has appealed.

The declaration contains but one count and it is as follows: That the defendant on or about the 16th day of October, 1912, was the owner of and operated an automobile in the City of Baltimore and in Howard County, Maryland. That this plaintiff, at the invitation of the defendant, entered the automobile for the purpose and with the intention of being carried therein to Laurel, Maryland. That while riding in the automobile and while exercising due care and caution on his part, the same was caused to skid and strike against a telegraph pole and overturn, and this plaintiff was thereby thrown from the automobile, his left arm was broken between the shoulder and elbow, his left ankle was sprained, his head was severely cut, his left forearm was badly bruised, he received severe bruises and contusions all over his body, he was severely injured in the left groin, he suffered from general shock to his system, and was further caused to suffer great physical pain and mental anguish. As a result thereof he was put to great cost for medical services, surgeon fees and hospital charges; he was prevented for a long space of time from attending to his usual avocation, as an attorney at law, and thereby sustained great monetary loss, and other great, serious and permanent wrongs and injuries were by him thereby sustained. That the said automobile was caused to skid, strike said telegraph pole and overturn by reason of the recklessness, want of care, default and negligence of the defendant, his servant and employee, in attempting to pass a vehicle upon the road on which they were traveling at a high rate of speed and against the protest of this plaintiff made to said defendant immediately before the happening thereof and in time to have avoided the same.

The record contains a single exception and that is to the ruling of the Court upon the defendant's prayers.

The plaintiff offered no prayers but the defendant presented eight. Two of these were granted and six were refused.

The exception to the fifth and sixth prayer is waived by the defendant in his brief, so the questions for our consideration are presented by the rulings of the Court upon the defendant's first, second, seventh and eighth prayers.

The defendant relies upon two grounds as a basis of defense: First, that the Court has no jurisdiction, because the proceeding is amicable and pretended and only for the purpose of affecting the rights of strangers not parties to the suit, and second because there is no evidence of actionable negligence on the part of the defendant.

The objections to the jurisdiction were raised by a motion to dismiss and by the defendant's second and seventh prayers, offered at the conclusion of the whole evidence. The motion was overruled, and the two prayers were refused. As these prayers will be set out by the Reporter, in his report of the case, and will be hereafter discussed by us, they need not be set out here,in extenso.

It appears, that prior to the alleged accident, the Maryland Casualty Company, had issued to the defendant, a policy of automobile insurance, indemnifying him from and against loss on account of suits for personal injuries similar in character to the present suit, according to the conditions and provisions of the policy.

The policy contains among others, the following provisions:

"In consideration of one hundred and seventy-six dollars ($176.00), the Maryland Casualty Company, of Baltimore, herein called the Company, agrees to indemnify Harry A. Fitzjarrel, of Baltimore, State of Maryland, herein called the Assured, against loss from liability imposed by law upon the Assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered, or alleged to have been suffered, by any person or persons and caused by the automobile vehicles owned or operated by the Assured. * * *

"No action shall lie against the Company to recover for any loss under this policy unless it shall be brought by the Assured personally for loss actually sustained and paid in money by the Assured in satisfaction of a final judgment after trial of the issue; nor unless such action is brought within (90) days after such judgment by a court of last resort against the Assured has been so paid and satisfied."

While it may be conceded in this case that the result of the litigation will necessarily affect the interest of a third party, the Casualty Company, who is not a party of record it does not follow because this is so, that the suit is collusive and fictitious, as alleged.

If the real and primary object of the suit is to redress the grievance of the plaintiff and there is an actual controversy, involving real and substantial rights between the parties to the record, the suit would not be dismissed.

It is only when the sole object of the suit is to affect third parties and when the interest of the parties to the suit is not adverse and when there is no real and substantial controversy between those who appear as adverse parties, that the principles invoked by the appellant here apply.

This case is clearly distinguishable in its facts, from those cited and relied upon, in the appellant's brief. 2 Ency. of Pr.and Pl. 342 and cases there cited.

If the defendant is primarily liable for the negligence that caused the injury, then, it seems clear, that the plaintiff would have a right of action for such negligence against the defendant, notwithstanding the fact that the Casualty Company would be ultimately liable. Eyler v. Co. Commrs., 49 Md. 257; Ches. Ohio Canal Co. v. Allegany Co., 57 Md. 201; Balto. OhioR.R. Co. v. Howard Co., 111 Md. 180.

Such being our view of the law, the motion to dismiss this suit was properly overruled, and there was no error in refusing the second and seventh prayers.

The second proposition, as to what duty the owner of an automobile owes to his guest who accepts an invitation to ride with him, is raised by the defendant's eighth prayer. The prayer is as follows:

"The defendant prays the Court to rule as a matter of law that it appears from the uncontradicted evidence in this case that the plaintiff was traveling as an invited guest in the private automobile of the defendant, and that unless the Court shall believe from the evidence that the plaintiff was injured by reason of the gross or wilful negligence of the defendant, the verdict of the Court shall be for the defendant."

While the reported cases upon the legal status of a guest, who voluntarily accepts an invitation to ride with the owner of an automobile are somewhat limited, the rule adopted by the later decisions as to the degree of care required is against the appellant's contention in this case.

Mr. Huddy, in his work on Automobiles, sec. 113, says: "Although he pays nothing for riding, he is, nevertheless, in the care and custody of the owner or driver of the machine and is entitled to a reasonable degree of care for his safety. If the driver has negligently run into some obstacle on the highway and thereby injured the guest, undoubtedly the owner and the driver would be liable to civil suit for damages. One who voluntarily accepts an invitation to ride as a guest in an automobile does not relinquish his right of protection from personal injury caused by carelessness, and it should be understood by owners of motor vehicles that they assume quite a serious responsibility when they invite others to ride with them, especially persons who by reason of weaknesses are subject to injury from slight causes."

In Patnode v. Foote, 153 Appellate Division Reports New York, 494, the Supreme Court of that State, held, as stated in the syllabus of the case, where in an action to recover for personal injuries to the plaintiff resulting from defendant's negligence it appears that the defendant invited the plaintiff, who was a witness in an action to which he was a party, to ride with him to the place of trial in an open buggy drawn by one horse driven by himself; that, against the plaintiff's protest, the defendant drove at a reckless speed, and that a collision with another wagon which threw the plaintiff violently to the ground was the result of defendant's careless driving, a judgment for the plaintiff should be affirmed. The plaintiff was a licensee, and it was the duty of the defendant to use ordinary care not to increase the danger of riding with him or to create any new danger.

In Beard v. Klusmeier, 164 Southwestern Reporter, 319, decided by the Court of Appeals of Kentucky, on March 20, 1914, where the facts are very similar to those in this case, the Court held, that it was the defendant's duty, upon inviting plaintiff to ride as a guest in defendant's automobile to use ordinary care not to increase plaintiff's danger or to create any new danger such as by fast and reckless driving, so that defendant would be liable for injuries to plaintiff resulting from driving the automobile recklessly.

The reasoning in Foote's case, supra, was adopted and followed in the Kentucky decision.

The cases of Pigeon v. Lane, 80 Conn. 237; Birch v. Cityof New York, 190 N.Y. 397; Mayberry v. Sivey, 18 Kan. 291, and Lochhead v. Jensen (Utah), 129 P. 347, are also in point and to the same effect.

The rule announced in these cases, we think, is the true and correct rule, and is controlling on this appeal.

The rule of gross or wilful negligence sought to be applied by the defendant's eighth prayer was not the correct rule applicable to the case, and this prayer was properly refused.

The defendant's first prayer was a demurrer to the evidence and as the evidence was legally sufficient to show actionable negligence, it was properly rejected.

Finding no error, in the rulings of the Court, the judgment will be affirmed.

Judgment affirmed, with costs.